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I. | Substantive International Law - First Part |
4. | SUBJECTS OF INTERNATIONAL LAW |
4.3. | International Organisations |
4.3.4. | "Implied Powers" |
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Legality of the Use by a State
of Nuclear Weapons in Armed
Conflict (Request by WHO)
Advisory Opinion of 8 July 1996,
I.C.J. Reports 1996, p. 66
[pp. 78-79] 25. The Court need hardly point out that international
organizations are subjects of international law which do not, unlike States,
possess a general competence. International organizations are governed by the "principle
of speciality", that is to say, they are invested by the States which
create them with powers, the limits of which are a function of the common
interests whose promotion those States entrust to them. The Permanent Court of
International Justice referred to this basic principle in the following terms:
"As the European Commission is not a State, but an international
institution with a special purpose, it only has the functions bestowed upon it
by the Definitive Statute with a view to the fulfilment of that purpose, but it
has power to exercise these functions to their full extent, in so far as the
Statute does not impose restrictions upon it." (Jurisdiction of the
European Commission of the Danube, Advisory Opinion, P.C.I.J., Series B, No. 14,
p. 64.)
The powers conferred on international organizations are normally the subject of an express statement in their constituent instruments. Nevertheless, the necessities of international life may point to the need for organizations, in order to achieve their objectives, to possess subsidiary powers which are not expressly provided for in the basic instruments which govern their activities. It is generally accepted that international organizations can exercise such powers, known as "implied" powers. As far as the United Nations is concerned, the Court has expressed itself in the following terms in this respect:
"Under international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties. This principle of law was applied by the Permanent Court of International Justice to the International Labour Organization in its Advisory Opinion No. 13 of July 23rd, 1926 (Series B, No. 13, p. 18), and must be applied to the United Nations." (Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, I.C.J. Reports 1949, pp. 182-183; cf. Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1954, p. 57.)
In the opinion of the Court, to ascribe to the WHO the competence to address the legality of the use of nuclear weapons - even in view of their health and environmental effects - would be tantamount to disregarding the principle of speciality; for such competence could not be deemed a necessary implication of the Constitution of the Organization in the light of the purposes assigned to it by its member States.
[pp. 81-82] 27. A consideration of the practice of the WHO bears out
these conclusions. None of the reports and resolutions referred to in the
Preamble to World Health Assembly resolution WHA46.40 is in the nature of a
practice of the WHO in regard to the legality of the threat or use of nuclear
weapons. The Report of the Director-General (doc. A46/30), referred to in the
third paragraph of the Preamble, the aforementioned resolutions WHA34.38 and
WHA36.28, as well as resolution WHA40.24, all of which are referred to in the
fourth paragraph, as well as the above-mentioned report of the Management Group
of 1987 to which reference is made in the fifth and seventh paragraphs, deal
exclusively, in the case of the first, with the health and environmental effects
of nuclear weapons, and in the case of the remainder, with the effects of
nuclear weapons on health and health services. As regards resolutions WHA42.26
and WHA45.3 1. referred to in the sixth paragraph of the Preamble to resolution
WHA46.40, the first concerns the WHO's contribution to international efforts
towards sustainable development and the second deals with the effects on health
of environmental degradation. None of these reports and resolutions deals with
the legality of the use of nuclear weapons.
Resolution WHA46.40 itself, adopted, not without opposition as soon as the
question of the legality of the use of nuclear weapons was raised at the WHO
could not be taken to express or to amount on its own to a practice establishing
an agreement between the members of the Organization to interpret its
Constitution as empowering it to address the question of the legality of the use
of nuclear weapons.
Nowhere else does the Court find any practice of this kind. In particular, such a practice cannot be inferred from isolated passages of certain resolutions of the World Health Assembly cited during the present proceedings, such as resolution WHAI5.5l on the role of the physician in the preservation and development of peace, resolution WHA22.58 concerning co-operation between the WHO and the United Nations in regard to chemical and bacteriological weapons and the effects of their possible use, and resolution WHA42.24 concerning the embargo placed on medical supplies for political reasons and restrictions on their movement. The Court has also noted that the WHO regularly takes account of various rules of international law in the exercise of its functions; that it participates in certain activities undertaken in the legal sphere at the international level - for example. for the purpose of drawing up an international code of practice on transboundary movements of radioactive waste; and that it participates in certain international conferences for the progressive development and codification of internatjional law. That the WHO, as a subject of international law, should be led to apply the rules of international law or concern itself with their development is in no way surprising; but it does not follow that it has received a mandate, beyond the terms of its Constitution, itself to address the legality or illegality of the use of weaponry in hostilities.
[p. 198 D.O.Koroma] I agree with the Court that because of the
necessities of international life, it is accepted that international
organizations can exercise implied powers, which are not in conflict with their
constitution and are required to ensure their effectiveness. However, the
implication that the WHO could not have intended to address "the legality
of the use of nuclear weapons" even if it had relied on the exercise of
such powers could only have been arrived at as a result of the interpretation
given to the question by the Court which, as I have said, not only distorts the
intention of the question to say the least, but cannot stand scrutiny when
judged against the law or the facts. In the first place, as implied powers are
those which may reasonably be deduced from the practice and functions of the
organization in question, or, as the Court put it in the case concerning Reparation
for Injuries Suffered in the Service of the United Nations,such powers are
limited to those which, though not expressly provided for in the Statute of an
organ "are conferred upon it by necessary implication as being essential to
the performance of its duties" (I.C.J. Reports 1949, p. 182), the
question that arises is whether the WHO, by asking the question posed, could
have been regarded as exercising its implied powers, deduced from its practice
and functions or essential to the performance of its duties. The response to the
question would have to be sought in both the Constitution and the practice of
the Organization.
As has already been stressed, the objective of the WHO is "the
attainment by all peoples of the highest possible level of health", and in
order to achieve that objective it is assigned certain functions which have
already been mentioned. Furthermore, the WHO over the years, as has been
demonstrated, has been concerned with the health effects of nuclear weapons.
It has also been noted and demonstrated that the use of nuclear weapons in
armed conflict would result in a catastrophe which would precipitate an
emergency situation in relation to health and the environment. Thus, even if the
Organization, in asking the question, were to claim to be exercising implied
powers, this, in my view, it would be entitled to do in order to seek legal
guidance for the performance of its function or for the attainment of its
objectives of promoting the health of all peoples, and in order to ascertain
whether States by using nuclear weapons with consequent health and environmental
effects would be in breach of their obligations under international law
including the WHO Constitution. In other words, the WHO is, in my view, entitled
to request the Court to determine whether the effects of a certain activity by a
State would be in breach of that States obligations under international law
including the WHO Constitution.
[p. 199 D.O. Koroma] In the Namibia case this Court emphasized that in interpreting an instrument the Court must take into consideration the changes which have occurred over the years as its interpretation cannot remain unaffected by the subsequent development of the law. The Court further emphasized,
"Moreover, an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation" (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), I.C.J. Reports 1971, p. 31).
The reference to the Nationality Decrees case is not intended to
suggest that the WHO is a State let alone a super-State, as the Court put it in
the Reparation case, nor is this the intention with respect to the
reference to the Namibia case either. The point sought to be made is
that both Courts when interpreting relevant documents have taken into
consideration developments which had taken place or had done so within the
framework of the entire legal system prevailing at the time of the
interpretation.
In other words, in determining the competence or scope of activities of the
WHO in the context of its Constitution and with reference to the health and
environmental effects of the use of nuclear weapons, account must be taken of
the Organization's role and practice in situations similar to those involving
the use of similar nuclear devices.